HYDERMAN KUTTI Vs. SYED ALI

JUDGEMENT

(1.) In both these appeals one common question arises whether the sale of a minor s property by his mother acting as defacto guardian is valid under the Mahomedan Law and if so, under what conditions. In one case Appeal No. 1416, the sale deed alleges that the shop which was sold has been vacant as the municipality prohibited the selling of fish and flesh in that shop, that it was in a dilapidated, condition and the mother of the minor who is the 8th defendant was unable to execute repairs. The sale proceeds it is alleged were applied to the discharge of certain debts contracted for the marriage of a sister of the minor and for other purposes. It was to meet the expenses of the marriage that money was required and the other facts mentioned apparently furnished the reason for selecting this particular property for sale. In Suit No. 4 of 1909 which has given rise to S.A. No. 1639 of 1910 the allegation in the plaint is that the minor s mother who was managing the family affairs and maintained the children, utilised the money obtained by sale of certain mortgage rights belonging to the. minor for the discharge of proper family debts and for other family necessity. The Court of first instance and the Appellate Court relying on the authority of Pathumabi v. Vittil Ummacha (1902) I.L.R. 26 M. 734 Durgaji Row v. Fakir Sahib (1906) I.L.R. 30 M. 197 and Abdul Khader v. Chidambaram Chettiar (1908) I.L.R. 32 M. 276 have held in both the suits that the sales even if the allegation as to the purpose be true would not be binding on the minor in Mahomedan Law.

(2.) The decisions of the Courts on the question how far the mother or other near relative of a minor who is not a guardian of the minor according to Mahomedan Law with respsct to his property but has the custody and upbringing of the minor is authorized to alienate the minor s property are more or less conflicting. There are two decisions of the Privy Council on the question which must be noted first; one of these is reported in Kali Duttjha v. Abdul Ali (1888) I.L.R. 16 C. 627. That was the case of a guardian and with respsct to his power their Lordships of the Judicial Committee approved of the statement of the law as contained in Macnaghten s Principles of Mahomedan Law Chapter VIII Clause 14 but they, upheld the transaction in question in that case on the ground that there was a dispute as to the title of the minor to the property and therefore the rule laid down in Macna-ghten did not apply and also, on the ground that the sale was for the benefit of the minor. In Mata Din v. Sheikh Ahmed Ali (1912) 16 C.W.N. 338 the sale was effected by the minor s mother who was custodian of the minor s person and was in possession of the property, in order to pay certain debts binding on the minor and their Lordships held that a person by de facto guardianship may assume important responsibilities towards the minor though he cannot clothe himself with the legal power to deal with the estate. They declared the sale to be not binding although it was made for the payment of an ancestral debt as it was not made of necessity nor was beneficial to the minor inasmuch as the facts of the case showed that the sale of the property was necessary. It is not clear what their Lordships decision would have been if the sale was made of necessity or was for the benefit of the minor. Another question was raised before the Judicial Committee in that case viz., whether a sale under the circumstances found there would be void or voidable. Their Lordships reframed from deciding that question. It should also be noted that one of the members of the Committee, Mr. Syed Ameer Ali observed with some emphasis during the argument that there was no warrant in the Mahomedan Law for sale by the mother of minor son s immove able property even for necessity; but though much weight must of course be attached to the observation it cannot be said that the decision of their Lordships was based on such broad and general grounds. In this Court it was held in Pathumabi v. Vittil (1902) I.L.R. 26 M. 734 that the principles of the Hindu Law relating to alienations by the mother of a Mahomedan minor although the sale for the purpose of paying ancestral debts by a co-heir in possession of all the effects of the deceased, if bona fide, would be binding on the other co- heirs. The principle of the ruling has been followed in Durgoji Bow v. Fakir Sahib (1906) I.L.R. 30 M. 197 and Abdul Kadir v. Chidambaram Chettiar (1908) I.L.R. 32 M. 276. In none of these cases was any definite opinion expressed on the general question, how far an alienation by a def acto guardian which is made for necessity and for the benefit of the minor is valid. Nor was this question decided in Second Appeal No. 1443 of 1907 an unreported judgment of Mr. Justice Benson and one of us. It was held in A liyamma v. Kunhumad (1911) I.L.R. 34 M. 527 that a guardian s powers in respect of immoveable property of the ward are very restricted in Mahomedan Law and that urgent necessity or clear benefit to the ward must be shown before an alienation by the guardian could be upheld. In laying down this proposition the learned Judges followed the Privy Council ruling already mentioned (16 Cal.) and certain decisions of the Bombay and Calcutta High Courts.

(3.) In the Calcutta High Court the law seems to be in a somewhat uncertain state. The earlier decisions confine within very narrow limits the powers of the de facto or de jure guardian in dealing with a Mahomedan minor s property while in more recent decisions this view has undergone considerable modification. In Musamat Bahshun v. Musamat Doolhine 12 W.R. 337 a sale by a guardian of a minor s property was held not to be permitted by the Mahomedan Law except for urgent necessity. In Bhutnath Dey v. Ahmed Hosain (1885) I.L.R. 11 C. 417 a mortgage by a person purporting to act as guardian was held to be void as it was not shown that the money raised by the mortgages and utilised for paying arrears of rent could not have been raised otherwise than by mortgaging the minor s property. Similarly in Morjna Bibi v. Banltu Behari Biswas (1902) I.L.R. 29 C. 437 Justices Bampini and Pratt set aside a sale by a de facto guardian because such a person has no authority to deal with the minor s estate, doubting whether even if the sale was for the manifest advantage of the minor it could be upheld under the Muhamadan Law. In Mafazzal Hosain v. Basid Sheikh (1906) I.L.R. 34 C. 36 however Rampini and Woodroffe JJ. decided that a sale for urgent necessity in order to pay the debts due by the deceased and for the maintenance of the minor was valid in Mahomedan Law Mr. Justice Woodroffe was inclined to place the validity of such transaction also on the grounds of justice, equity and good conscience inasmuch as it was not made out that it was prohibited by Mahomedan Law. It should be noted that the learned Judges distinguished the decision in 29 Calcutta on the ground that it was not shown that the transaction was for the benefit of the minor. Chief Justice Maclean and Mr. Justice Caspersz in a case reported in Ram Charan Sanyal v. Anukul Chandra Acharjee (1906) I.L.R. 34 C. 65 followed the ruling of Bampini and Woodroffe JJ. in the last mentioned case and held that a sale by the mother as a defacto guardian of his minor son is good and valid if it is found to have been made bona-fide for the benefit of the minor. Referring to the case in 29 Calcutta they pointed out that the effect of that ruling is considerably modified by the ruling in 1 L.R. 34 C. 36. In fact, however, they have laid down a broader proposition than what forms the basis of Bampini and Woodroffe JJ s judgment in I.L.R. 34 C. 36 placing the ruling on general grounds of justice, equity and good consicence. But with all deference to the learned Judges there can be no doubt that the question must be determined in accordance with the provision of Muhamadan Law. Moreover it is difficult to see how a man who chooses to buy a minor s property from a person who has no power to deal with it however bona fide his action may have been, can invoke any principle of justice and good conscience to support the transaction itself though no doubt such consideration may be a good ground for the Court refusing to render any help to the minor when he seeks to recover the property except on the condition of his restituting whatever benefit he has derived from the transaction. The other principle indicated in the decision of Bampini and Woodroffe JJ. and in other rulings viz., that in Mahomedan Law urgent necessity and benefit of the minor is a justifying cause of such a transaction though the person who acted on behalf of the minor had no legal authority of a guardian seems to be a more intelligible ground and requires careful consideration.